EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES – Business Necessity

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The City’s exclusion of McCormick from the hearing was not justified by either an alleged violation of the Brown Act or the City’s designation of McCormick as a witness. While it is true that the City Code provides for applicability of the Brown Act and the City’s discretion to sequester witnesses, that discretion does not automatically trump MMBA rights. The authority is permissive and such authority may not be exercised in a manner that violates the rights of employees or employee organizations under the MMBA. The plain language of the City’s Code states that formal rules of evidence do not apply to disciplinary hearings so that the City’s citation of Evidence Code section 777 as support for excluding McCormick from the hearing was unpersuasive. The City excluded McCormick while permitting the City’s representative and chief witness to remain in the hearing. The City Council in this matter is not a “neutral decider of cases,” but rather acted as an agent of the City and responsible for the City’s actions.